Hari Singh By His Next Friend Ambu Kanwar and Glenn Lynch

[2021] HCATrans 12

[2021] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S147 of 2020

B e t w e e n -

HARI SINGH BY HIS NEXT FRIEND AMBU KANWAR

Applicant

and

GLENN LYNCH

Respondent

Application for special leave to appeal

GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 FEBRUARY 2021, AT 9.38 AM

Copyright in the High Court of Australia

MR C.S. WARD, SC:   May it please the Court, I appear for the applicant in that matter with my learned friends, MR J.M. MORRIS, SC, MS J.K. MEE and MR D.S. STANTON.  (instructed by Morgan + English Commercial Lawyers)

MR J.E. SEXTON, SC:   May it please the Court, I appear with my learned friend, MR D.A. LLOYD, SC, for the respondent.  (instructed by Moray & Agnew)

GAGELER J:   Yes, Mr Ward.

MR WARD:   Your Honours, this case involves a catastrophic injury to a jockey in the conduct of a horse race.  The proceedings below involved as part of the debate a consideration of whether the liability defeating provisions in the Civil Liability Act (NSW) should extend to professional sports as well as recreational sports as that word is commonly understood.

GAGELER J:   Was that the reason for the Bench of five?

MR WARD:   That is right, your Honour, yes.  So, for that reason a Bench of five was convened to reconsider the decision in Goode v Angland which was an earlier decision on the same point. That forms no part of the special leave application. The second part of the case, however, which does form the focus of this application is the process of reasoning that is to be adopted to identify an obvious risk for the purpose of the liability defeating provision in section 5L of the Civil Liability Act. Section 5L provides that:

A person (the defendant) –

and I stress the identification of the relevant person:

is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity –

Assuming that there is a dangerous recreational activity, two key points flow from the provision and both are the subject of the application as a matter of principle given the divergence of opinion that has appeared in the New South Wales courts.

The first is that the relevant risk for consideration must be one that is obvious, there is a question as to what is meant by “obvious”.  The second is that it must be that obvious risk which actually materialises.  The definitional question is what is meant by “obvious” and the causation question is, is it the obvious risk that materialises.

EDELMAN J:   There is a characterisation question as well, is there not?  The level of generality at which you identify the risk.

MR WARD:   Yes.  And the point at which that question of generality and specificity is to be determined, and it can only be, in our case, with the benefit of hindsight.  It is only when ‑ ‑ ‑ 

GAGELER J:   Nobody doubts that, do they?

MR WARD:   Nobody doubts it but the process adopted by the New South Wales Court of Appeal suggests much more weight, or an emphasis on the prospective generality, and much less emphasis on the mechanisms of accident and the content of the acts of negligence.

GAGELER J:   It seems to me that each member of the Court of Appeal adopted the analysis that appears in Menz v Wagga Wagga Show?

MR WARD:   That is correct, your Honour, and remember what has then occurred appears to have been something of a drift away from a strict application of Justice Leeming’s principles in Menz.  Possibly the key point of divergence ‑ ‑ ‑ 

GORDON J:   What is the moving away from the strict application?  How does that arise?

MR WARD:   It arises, your Honour, in this way.  The drift, if I could put it that way, arises because there is a reluctance, or in Justice Payne’s case, a complete antipathy towards the proposition that acts of gross negligence, recklessness or deliberate conduct could ever be relevant to the question of whether or not a risk is obvious at the prospective time that it is to be considered.

EDELMAN J:   There is a strong parallel, is not there, with the characterisation question that you see in cases of remoteness or scope of a liability for consequences ‑ ‑ ‑ 

MR WARD:   Absolutely, yes, your Honour, we accept that.

EDELMAN J:   ‑ ‑ ‑ and it is extremely well established in those areas that deliberate conduct, possibly even reckless conduct, would usually fall outside the scope of harm or the principles which would make something too remote.

MR WARD:   Yes, your Honour, we accept that.

EDELMAN J:   This is not a case of recklessness or intentional conduct, is it?  Because there were findings by the primary judge that there was no recklessness involved.

MR WARD:   Those findings were challenged and not accepted by the members of the Court of Appeal, including the majority judges.  The majority found that the conduct was best described as either reckless or deliberate, both of which require at least some element of conscious thought.  It may have been momentary but, in the circumstances of the accident, it is quite clear that Mr Lynch – who had found himself in what is in racing terms described as a “pocket” behind two leading horses and sandwiched between the rail and an outside horse – decided, consciously, to extricate himself from that position by deliberately swerving sharply to the left.

Mr Ryan, of course, is the jockey immediately on the outside, he is the only rider who gave evidence, and his description of what occurred was forthright, frank and emphatic in both the deliberateness of what occurred and, also, in the fact that it could not – in Mr Ryan’s sense – have been something that anybody could have predicted, “no one could have predicted that” were his exact words.

GORDON J:   So, Acting Justice of Appeal Simpson, in the subsequent case of Carter v Hastings, seemed to not contend that that was the approach adopted.  What she seemed to say in that decision was that some principles were clear – “we just took a different view”.  And it was not a question of application of principle or identification of principle, it was the application of them to the facts and it is a question of fact and degree and we had a different view about the characterisation question.

MR WARD:   That is what Justice Simpson said in that case, your Honour.  With respect to Justice Simpson, we do not agree with that characterisation, but we do not seek to debate the point.

GORDON J:   What it might do is it might emphasise that it is the characterisation question, so fact specific and fact dependent.

MR WARD:   Well, could I take your Honours to the decision of Justice Leeming, the judgment of Justice Leeming in our case, which appears in the relevant passages at application book page 105.

GORDON J:   Is this 136?

MR WARD:   Yes, it is paragraph 136.  What Justice Leeming there does is suggest that:

there is no reason for –

what his Honour described as:

fine distinctions differentiating species of unsafe riding to play a role in the characterisation of risk –

Now, what then happens, at application book 107, is that Justice Leeming gives an example, which he says falls outside the fine distinction qualification that he has made.  In paragraph 140, Justice Leeming puts forward a proposition that a jockey who suffers a fall as a result of rabbits burrowing under the racetrack in a manner that is, presumably, not known to the riders at the time they enter onto the track:

it seems probable that that would not be the materialisation of an obvious risk.

But on Justice Leeming’s own approach to our case, precisely these questions would have to be analysed and dissected.

The Court would have to determine whether or not a horse is likely to fall, whether the proper characterisation of the risk is a person falling from the horse, which was the trial judge’s original identification of the risk.  If it is not as general as a man just falling from a horse, or a rider falling from a horse at any time in a race, what is the mechanism by which the fall occurs, and how obvious is it to somebody?  That is a question which is, I think Justice Edelman accepts, can only be determined with hindsight.  It is a ‑ ‑ ‑ 

GAGELER J:   Everyone accepts it can only be determined ‑ ‑ ‑

MR WARD:   Yes.  But it involves, your Honour ‑ it necessarily involves what Justice Leeming describes as fine distinctions between species of negligence.

EDELMAN J:   Your point is that once you characterise the risk as, for example, falling from a horse, then just as in remoteness of damage type enquiries, the manner in which the fall from the horse occurs or the extent of the harm from the fall from the horse, becomes irrelevant.

MR WARD:   Yes ‑ ‑ ‑ 

EDELMAN J:  So, whether it is rabbit burrows, or whether it is another horse bumping into you, if the risk is falling from a horse, that is the obvious risk and that is the end of the story.

MR WARD:   That is the obvious risk.  And that cannot be the law, despite the fact that we say that is what has been applied in our case. 

EDELMAN J:  Could you take me to the passage you say where the majority say that the harm was something that was intended or about which the other rider was reckless. 

MR WARD:   Yes, your Honour, I may just have to turn that up.  Certainly, in the majority ‑ ‑ ‑ 

GAGELER J:   In Justice Leeming’s judgment, it is probably paragraph 139, Mr Ward.

MR WARD:   I thought it was 139 in Justice Leeming.  Justice Payne has a much longer passage ‑ ‑ ‑

GORDON J:   Before you go into Payne, Justice Leeming at 137 to 138 sets out the facts and matters upon which he relies in order to come to that conclusion. 

MR WARD:   Yes, and those passages are the subject of detailed consideration by Justices Simpson and McCallum.

GORDON J:   That comes back to my point I put to you earlier, it is really a question about fact and degree and the facts and circumstances in this case, rather than the actual principles, is it not?

MR WARD:   Well, that would be true, your Honour, were it not for what Justice Leeming said in 139, where his analysis leads him to the proposition that questions of:

“gross negligence” or recklessness, or even deliberateness –

are not relevant to the consideration and that flows through 139 into 140. 

EDELMAN J:   But that is not deliberateness as to the harm itself.  That is not intending to cause harm to another rider.  That is deliberateness in terms of bumping your horse into another horse.

MR WARD:   That is right, and being reckless as to the consequences.

GAGELER J:   How would you crystallise the question of principle you say ‑ ‑ ‑

MR WARD:   The question of principle, your Honour ‑ ‑ ‑

GAGELER J:   ‑ ‑ ‑ arises here?

MR WARD:   Well, there are two.  The first is, it is not the correct approach to prospectively identify a generalised risk and thereby reason that anything that falls within the generalised umbrella of risk is obvious.  What has occurred, your Honour, in our submission, on that question of principle alone is an equation in the approach of the majority of concepts of foreseeability with concepts of obviousness.  The two are not to be equated. 

Obviousness, as your Honours are aware, has a long and rich history in the law of liability and civil liability.  Obviousness was at one stage a defence to questions of breach of duty, although it was not relevant to the questions of existence of duty.  But the legislature in developing this legislative amendment when it came in in 2006 did so in the knowledge that obviousness was something which carried an established meaning.  I think, as Justice  McCallum put in the recent case of Tapp, Justice Ipps’ report referred to obviousness as carrying its ordinary meaning ‑ something which is self‑evident, something which is clear. 

Now, the prospective element of this test, your Honour, and the question of principle is to what extent at the time the – in my case, a rider – must be taken to voluntarily assume the risk of participation in the dangerous recreational activity, to what extent does that person understand that there is an obvious risk that he or she is accepting by engaging in that activity.

Now, that can obviously be identified in the most general umbrella terms, the risk of falling off a horse and thereby being injured, but it requires with hindsight after the accident precisely what Justice Leeming, Justice Payne and to some extent Justice Basten reject, which is an inquiry into the fine detail, as Justice Leeming would have it, or the mechanism of accident, as we put it, to determine whether the mechanism of accident is so outside what would have been obvious that it could not possibly have been in the contemplation of that person at the time they assumed the risk.

Now, that is not a question of foreseeability.  One of the areas in which our submissions depart from the approach of the Court of Appeal majority is that the court adopted the underlying proposition that if something has a low probability of occurring it must be considered to be obvious.  There is a reference in I think Justice Payne’s judgment to the fact that the rules of racing prohibit a whole lot of ‑ a wide range of conduct and anything that falls within the prohibited conduct must be considered to be obvious, no matter its low probability of occurring.

Certainly 5F(3) provides the converse of that.  It provides that the fact that something has a low probability of occurring does not mean it cannot be obvious, but it does not mean that the fact that something has a low probability of occurring means it must be obvious.  The Court of Appeal, with respect, has reasoned on the second basis, not the first.

GAGELER J:   Well, I must say I did not see that in the judgment.  You might have to demonstrate that to us.

MR WARD:   Thank you, your Honour.   The second point of principle – I will return to that point, your Honour, if I may in a moment – the second point of principle is that each of Justice Payne and Justice Leeming expressly rejects the proposition that gross negligence or recklessness is a matter to be weighed in determining whether or not something is obvious.

Now, at one level, it is clear that the risk of riding in a race carries with it the risk of falling.  It is also clear that the risk of riding in a race carries with it the possibility of bumping, jostling and pushing.  So much was clear from the evidence of Mr Murrihy, the experienced New South Wales steward.  But no witness gave evidence that what occurred was something that was expected to occur in the ordinary course of a race.

At that point, where the Court of Appeal has resolved or determined that the matter is properly described as “reckless conduct”, the recklessness, the conscious choice that is involved in taking what may have been a split‑second decision, but a split‑second decision reckless as to the consequences and so in breach of the expected and ordinary duties of a professional race rider – and we do stress “professional” because I return to the definitional point at the start of 5L which is that one is considering a liability‑defeating provision that benefits the defendant, and in this case a defendant who has deliberately chosen to behave in a way, or at least recklessly chosen to behave in a way that caused a severe risk to fellow participants.

Professional sportsmen, once they have brought with them the rubric of a recreational activity, are entitled to understand that professional standards will be brought to bear in the conduct of the activity.

GAGELER J:   Well, they all seem to understand that and my understanding of at least Justice Leeming’s rendition of the evidence is that breaches of the rules were regularly occurring and jockeys pushed the boundaries commonly.

MR WARD:   Justice Simpson and Justice McCallum, at paragraphs 227 to 230, deal with that in the way that we say is the correct approach, which is to say that certainly they pushed the boundaries, certainly there is a competitive spirit in riding – there was no doubt about that.  But in this particular case ‑ and it does not turn on the facts because the facts are not at issue; it is not a fact case, it is a characterisation of a fact case – the conduct that occurred was so outside the norms that it could not possibly be described as “obvious”.

EDELMAN J:   Is not the difficulty then for you that, if you accept the appropriate characterisation of risk as being a risk of injury occurring by falling as a result of the conduct of another jockey, then one does not need to inquire any further into precisely what that type of conduct is apart from possibly examples of conduct that is intended to cause harm or reckless as to the harm it would cause?

MR WARD:   And, your Honour, you asked a moment ago about the passages in which those references to recklessness occur.  I can give you the references:  they are in Justice Basten’s judgment at paragraphs 30 and 70; in Justice Leeming’s judgment at paragraph 134; and, in Justice Payne’s judgment at paragraph 156.

Justice Leeming, at 134, deals with the propositions that deliberate, reckless and grossly reckless conduct are matters which, in his Honour’s view, do not affect the question of whether or not it is obvious.  That, of course, is directly inconsistent with what Justice McFarland did in Glenworth Valley.  Glenworth Valley was a case of a young child on a four‑wheeled motorbike ‑ exactly the same type we considered in Kirk all those years ago – and was on an adventure tour.

She was warned of the risks, as were the family.  There is undoubtedly a risk that if you drive a four‑wheel ATV too fast you will fall off it or could fall off it.  It can undoubtedly lead to a severe injury and it was undoubtedly a dangerous recreational activity within the meaning of the term.  But Justice McFarland found by looking at the mechanism of accident, and the other members of the Court of Appeal agreed with his Honour, by looking at the mechanism of accident it was not an obvious risk in the circumstances of what occurred and what occurred was an instructor rode too fast in the lead of the group and the young person on the bike who was injured followed along trying to keep up and, thereby, fell off. 

The only distinguishing feature, your Honour ‑ the only distinguishing features was that the young child was led to a high speed through the acts of the instructor presumably because he was – although Justice McFarland does not say so ‑ reckless as to the consequences of injury.  That is the correct approach.  That is the correct approach.  It is not the approach that the Court of Appeal has adopted in our case.  Nor does it seem to be the approach adopted by the Court of Appeal in other recent cases but it is an approach that means that obviousness which is to be construed, in our submission, strictly as a liability defeating provision, has

very little work to do in the context of a dangerous recreational activity.  Those are our submissions, your Honours.

GAGELER J:   Thank you, Mr Ward.  Mr Sexton.

MR SEXTON:   Thank you, your Honour.  There are two reasons why special leave would not be granted in this case.  The first is that there is no matter of principle which has been identified in relation to the test to be applied.  The minority in the Court of Appeal in this case in paragraph 195 at page 126 of the application books refer to and summarise what was said by Justice Leeming in Menz v Wagga Wagga Show Society and it is paragraph (b) which picks up paragraph 71, I think, of Menz which is the critical point in this case, that is, that:

the specific risk must be sufficiently precise to capture the harm which results from its materialisation –

It is in that respect that my learned friend’s argument that the Court of Appeal has said that gross negligence or recklessness is irrelevant to that consideration is demonstrably wrong because what the Court of Appeal was saying, as it had been said as early as in Fallas v Mourlas by Justice Ipp, was that it depends on the circumstances of the case to work out whether or not something which can be given the epithet gross negligence or deliberate conduct or intentional conduct is nevertheless obvious.

GAGELER J:   That is the retrospective element of it, the hindsight.

MR SEXTON:   Yes, your Honour.  Expectation, as Justice Basten points out in this case at paragraph 14, I think, says that expectation is a different thing to obviousness.  An example in a different context; when somebody drives to work every day they do not expect that they will be involved in a motor vehicle accident but, nevertheless, it is an obvious risk that that may occur.  Very low probability.  That is the sort of distinction that we are talking about.

Now, jockeys going out into the highly‑competitive environment of a professional horse race do not have an expectation that there will be a breach of the rules in that particular race, still less that that breach may result in them falling and suffering injury, but it is nevertheless an obvious risk.  And the factual basis, which my learned friend has not taken your Honours to, and which is not, with respect, addressed by Justices Simpson and McCallum in their reasoning, is to be found firstly in Justice Leeming’s reasons in paragraph 139, but at page 107 of the application books, in which he quotes some observations made by the primary judge:

There must also be in every race a risk that a jockey, feeling the obligation to give his mount its best chance in the race and having to make split‑second judgments about how he should ride in order to achieve this, will ride in a manner that he knows will exceed the rule and that, in the event, proves to be dangerous.

And his Honour had previously pointed out, in paragraph 134, but this passage appears at page 105 for the application books, it is about five lines down:

An action may be “deliberate” but its consequences may be regarded as merely negligent or reckless

As we point out in our written submissions, nearly all conduct, which, one way or another, is found to be tortious, is deliberate in the sense that the person who is performing an act, or failing to do something, knows what they are doing.

EDELMAN J:   Deliberate in the sense of voluntary.

MR SEXTON:   Yes ‑ well, no, deliberately, your Honour, in the sense that they actually know what they are doing.  Now, the respondent in this case knew what he was doing, he was abruptly bumping his horse against another horse, in the context that the experts, or the expert, called by the applicant, and the jockey called by the applicant both accepted that contact between horses is permissible, that is, it is within the rules of racing, so there was no absolute prohibition on horses bumping against each other.  But there is a point at which ‑ and this a matter of fact and a matter of degree, and a matter of interpretation in every case by the stewards and by the courts ‑ where that conduct becomes outside the rules and can give rise to a charge of careless riding or a higher charge.

GAGELER J:   Well, that is what happened here, is it not?

MR SEXTON:   And that is what happened here.  But, as Justice Payne sets out in paragraph 161 of – this is a starting point for the factual analysis, 161 on application book 115, he sets out some of the evidence given by Mr Ryan, who was another jockey in the race, who was called in the applicant’s case.  The starting point, of course, which there is no controversy about, is that:

injuries to jockeys are part and parcel of horseracing –

and then some evidence which was picked up by the other judges about how jockeys push the boundaries of the rules, so they all know that that is what they are doing.  There is another rule of racing which requires mounts to be ridden as hard as possible.

There is more evidence in paragraph 166, at pages 116 and 117.  In particular, just about line 18:

But the expectation that there can be conduct, including, as a result of careless riding is part and parcel of racing in a competitive horse race, isn’t it?

Then, the more important evidence starts at paragraph 170 at page 118 of the court book.  In cross‑examination:

Mr Ryan agreed that the possibility that a jockey’s mount would be the victim of interference . . . arose in every race:

“A.     So, you’re asking – so you’re saying [the appellant] should accept possibly that there would be interference to him? 

Q.       Yes.

A.       Well, you’re right. 

Q.       That’s a possibility in every race, isn’t it?

A.       Yes, it is.”

Then, the most important evidence, in this regard, appears at page 120 of the application book, in paragraph 173.  Justice Payne – this is his judgment – described this evidence as “compelling”.  It was not referred to by the minority.  But what Mr Ryan said, in cross‑examination there, the question was:

“Q.     This isn’t the first time you’ve seen that sort of an incident on a racecourse, is it?

That was following other cross‑examination about the particular facts of this incident – the abruptness, the deliberateness, the fact that he did not know there was another jockey one horse out from the horse that he did bump.  The answer:

A.       No, it’s not.

Q.       It happens all the times, doesn’t it?

A.       Not all the time, no.

Q.       No, but often enough?

A.       Well, yeah, it does happen, yeah.”

So, that is a concession made by a jockey with 30 years of experience who was called by the applicant in support of his case.

GAGELER J:   How do you explain the difference between the minority and the majority?

MR SEXTON:   It can be seen, your Honour, in paragraph 226, I think, your Honour.  It starts with the description, or characterisation there, of repeated buffeting.  The repeated buffeting was within the rules, followed by “an aggressive attempt to get out”.  That is not within the rules.  The description of “hard to the left” and “heavy contact”.  Then, in 227, Mr Ryan was said to have emphasised the abruptness of the contact he said was made:

It was more than the usual contact; it was an aggressive bump.

That has to be looked at in the context of the evidence I have just taken your Honours to.  So, the ultimate reasoning in 228:

The risk that another jockey would so conduct himself or herself is not, in our opinion, on that “would have been obvious to a reasonable person in the position of” the appellant.

EDELMAN J:   That is a characterisation difference at a much greater level of specificity.

MR SEXTON:   Yes, your Honour.

EDELMAN J:   But one might say that they are characterising at that level of specificity to try to include within it the possibility of deliberate conduct.

MR SEXTON:   Yes, your Honour.  They go on – and this is the actual conclusion in the next sentence, on page 136:

The distinction is between careless riding . . . and a deliberate act of causing a horse to collide with another and push it off its line of running . . . While the former is an obvious risk of the sport of horseracing, the latter, in our opinion, is not.

In our submission, the factual challenge which the applicant seeks to make falls foul of the evidence which I have taken your Honours to in Justice Payne’s judgment because ‑ ‑ ‑

EDELMAN J:   Would you say that the proper characterisation is one that should always exclude any form of deliberate conduct ‑ ‑ ‑ 

MR SEXTON:   No, your Honour.

EDELMAN J:   ‑ ‑ ‑ so that, for example, one rider who intentionally pushes another one off, intending to harm, would be excluded from the obviousness of risk?

MR SEXTON:   If your Honour is asking whether the section would not apply to those circumstances, yes, we accept that.  So if two horses are – unless there was evidence that jockeys regularly reach out and pull each other off horses, then that would be excluded, but the point we are making, at a level factual in this case, was that there was evidence that what actually happened here, an abrupt hard shift to the left, does happen.  And if it does happen and it is part of the spectrum of conduct which is ‑ ‑ ‑ 

EDELMAN J:   You are really then just favouring the characterisation by the minority that is saying that on the facts the characterisation by the minority would still fall within an obvious risk ‑ ‑ ‑ 

MR SEXTON:   Yes, your Honour, that is why we say that this is not an appropriate vehicle because even if the complaints that are made about – which we do not accept – the complaints that are made about the way in which ‑ it said that the majority characterised the application of the section, even accepting that, it is not an appropriate vehicle because at a factual level, this case cannot succeed.  May I please the Court, there are submissions.

GAGELER J:   Thank you.  Mr Ward.

MR WARD:   Your Honours, just in relation to the difference between the minority – it actually starts, if I may, at application book page 133, paragraph 217.  Their Honours do what the majority, with respect, did not do, or certainly did not accept, and that is discuss clearly the difference between the conduct which is conduct which happens regularly, which is obvious, the jostling, the bumping, the pressure, which is within the rules, and Mr Ryan’s evidence, at the top of application book page 133, the passage extracted:

“When you’re making a gradual attempt to get out, it gives other riders the opportunity to say, well, he’s coming up and to take

evasive action but when the attempt becomes more aggressive and it’s an abrupt attempt, it doesn’t give the riders like [the appellant] the opportunity to take evasive action.”

At paragraph 219, the last sentence:

the majority of careless riding charges resulted from jockeys allowing their mount to “shift” or trying to get in close to the rail ‑

And that is then picked up at paragraph 220, in the evidence of Mr Murrihy.

At 221, their Honours make the significant finding which was correct and is not capable, in our submission, of being challenged, that there was “a sharp and heavy contact” which caused Decoree – that is Mr Ryan’s horse – to be pushed out into the path of my client’s horse.  At 225, the conclusion is, in the minority judgment:

In any race, a jockey must expect that there will be a level of careless riding . . . Riding of that character is an obvious risk ‑

As Justice Edelman said, what we are concerned with is a question of characterisation.  Their Honours’ finding that, at 228, this conduct was not obvious, in our submission, is clearly correct but it sits within the criticism of the approach of principle taken by the majority by which questions of gross negligence, recklessness and fine distinctions of negligence are excluded from consideration, leading the majority inexorably but erroneously to the proposition that this risk was obvious when in truth no professional jockey would have expected it.  Those are our submissions, your Honours.

GAGELER J:   Yes, thank you.

We are not persuaded that the appellant would have sufficient prospects of success on appeal to warrant the grant of special leave to appeal.  Special leave is refused with costs.

AT 10.13 AM THE MATTER WAS CONCLUDED